Law Enforcement and Corrections Commons^™

Why Care About Mass Incarceration?, James Forman Jr.

Georgetown Law Faculty Publications and Other Works

The United States incarcerates more of its citizens than any other nation in the world. Paul Butler’s Let’s Get Free: A Hip-Hip Theory of Justice makes an important contribution to the debate about the crime policies that have produced this result. Butler began his career as a federal prosecutor who believed that the best way to serve Washington, D.C’s low-income African-American community was to punish its law-breakers. His experiences—including being prosecuted for a crime himself—eventually led him to conclude that America incarcerates far too many nonviolent offenders, especially drug offenders. Let’s Get Free offers a set of reforms for reducing …

How (Not) To Think Like A Punisher, Alice G. Ristroph

Georgetown Law Faculty Publications and Other Works

This article examines the several and sometimes contradictory accounts of sentencing in proposed revisions to the Model Penal Code. At times, sentencing appears to be an art, dependent upon practical wisdom; in other instances, sentencing seems more of a science, dependent upon close analysis of empirical data. I argue that the new Code provisions are at their best when they acknowledge the legal and political complexities of sentencing, and at their worst when they invoke the rhetoric of desert. When the Code focuses on the sentencing process in political context, it offers opportunities to deploy both practical wisdom and empirical …

Revisiting Beccaria's Vision: The Enlightenment, America's Death Penalty, And The Abolition Movement, John Bessler

All Faculty Scholarship

In 1764, Cesare Beccaria, a 26-year-old Italian criminologist, penned On Crimes and Punishments. That treatise spoke out against torture and made the first comprehensive argument against state-sanctioned executions. As we near the 250th anniversary of its publication, law professor John Bessler provides a comprehensive review of the abolition movement from before Beccaria's time to the present. Bessler reviews Beccaria's substantial influence on Enlightenment thinkers and on America's Founding Fathers in particular. The Article also provides an extensive review of Eighth Amendment jurisprudence and then contrasts it with the trend in international law towards the death penalty's abolition. It then discusses …

Pfo Law Reform, A Crucial First Step Towards Sentencing Sanity In Kentucky, Robert G. Lawson

Law Faculty Scholarly Articles

The purpose of this article is to engage in some analysis and discussion of the part of this sentencing law that cries out loudest for reform (the state's persistent felony offender law), reform that in short order would begin to deflate the population that has our prisons and jails grossly overcrowded. In this analysis and discussion, there is some brief consideration of the justifications used to support repeat offender laws (Part I), a segment on the history and evolution of Kentucky's law (Part II), an examination of a selection of repeat offender laws from other states (Part III), a report …

Frequency And Predictors Of False Conviction: Why We Know So Little, And New Data On Capital Cases, Samuel R. Gross, Barbara O'Brien

Articles

In the first part of this article, we address the problems inherent in studying wrongful convictions: our pervasive ignorance and the extreme difficulty of obtaining the data that we need to answer even basic questions. The main reason that we know so little about false convictions is that, by definition, they are hidden from view. As a result, it is nearly impossible to gather reliable data on the characteristics or even the frequency of false convictions. In addition, we have very limited data on criminal investigations and prosecutions in general, so even if we could somehow obtain data on cases …

Why The County Jail Is Often A Better Choice, Shawn Chapman Holley

Michigan Law Review First Impressions

I have been a criminal defense lawyer in Los Angeles for almost twenty years. I began my career in the Los Angeles County Public Defender’s Office, representing defendants who were poor and often homeless. For the past twelve years, I have been in private practice, representing defendants who are wealthy and often famous. Having represented criminal defendants coming from such varied economic circumstances, I have witnessed firsthand the criminal justice system’s disparate treatment of those with money and those without. Pay-to-stay jails are yet another example of that disparity. Yet I believe that those without the money to pay for …

Separate And Unequal: Federal Tough-On-Guns Program Targets Minority Communities For Selective Enforcement, Bonita R. Gardner

Michigan Journal of Race and Law

This Article examines the Project Safe Neighborhoods program and considers whether its disproportionate application in urban, majority- African American cities (large and small) violates the guarantee of equal protection under the law. This Article will start with a description of the program and how it operates-the limited application to street-level criminal activity in predominately African American communities. Based on preliminary data showing that Project Safe Neighborhoods disproportionately impacts African Americans, the Article turns to an analysis of the applicable law. Most courts have analyzed Project Safe Neighborhoods' race-based challenges under selective prosecution case law, which requires a showing by the …

The Political Market For Criminal Justice, Rachel E. Barkow

Michigan Law Review

In 2004, the number of individuals incarcerated in the United States exceeded the two million mark. The current incarceration rate in the United States is 726 per 100,000 residents, the highest incarceration rate in the Western world and a dramatic increase from just three decades ago. Not only are more people serving time, but sentences have markedly lengthened. What should we make of these trends? The answer has been easy for most legal scholars: to them, the incarceration rate in the United States is too high, and reforms are necessary to lower sentences. But many political leaders and voters reach …

Crime, Criminals, And Competitive Crime Control, Wayne A. Logan

Michigan Law Review

Given the negative consequences of crime, it should come as no surprise that states will endeavor to make their dominions less hospitable to potential criminal actors. This predisposition, when played out on a national stage, would appear ripe for a dynamic in which states will seek to "out-tough" one another, leading to a spiral of detrimental competitiveness. Doran Teichman, in an article recently appearing in these pages, advances just such a view. Teichman posits that the decentralized structure of America's federalist system provides states with "an incentive to increasingly harshen" their crime control efforts, with the net result being excessive …

Decentralizing Crime Control: The Political Economy Perspective, Doron Teichman

Michigan Law Review

In an article recently published on the pages of this Law Review, The Market for Criminal Justice: Federalism, Crime Control, and Jurisdictional Competition ("The Market"), I put forward a theory of crime control in a decentralized government. Specifically, I made three distinct claims. First, criminal justice policies affect the geographic decision of criminals as to where to commit their crimes. Other things being equal, criminal activity will tend to shift to areas in which the expected sanction is lower. Second, local jurisdictions attempting to lower their crime rates will react to policies adopted by neighboring jurisdictions and try …

Indecent Standards: The Case Of U.S. Versus Weldon Angelos, Eva Nilsen

Faculty Scholarship

In today's highly punitive culture, perhaps Weldon Angelos' fifty-five-year sentence does not seem unusual. He's a 25-year-old man who was convicted in December 2003 of selling marijuana, possessing firearms while drug dealing, and money laundering. ³ The facts proven at trial are that on three occasions in June and July, 2002, Angelos sold eight one-ounce bags of marijuana for $350 each to a government informant. ⁴ The purchaser testified that a firearm was visible during two of these drug sales.⁵ Police seized another gun from Angelos' home five months later pursuant to a warrant.⁶ At no time was …

Murder, Meth, Mammon & Moral Values: The Political Landscape Of American Sentencing Reform (In Symposium On White Collar Crime), Frank O. Bowman Iii

Faculty Publications

This Article examines the ongoing American experiment in mass incarceration and considers the prospects for meaningful sentencing reform.

The Innocence Protection Act Of 2004: A Small Step Forward And A Framework For Larger Reforms, Ronald Weich

All Faculty Scholarship

Passage of the Innocence Protection Act in the closing days of the 108th Congress was a watershed moment. To be sure, the bill that finally became law was a shadow of the more ambitious criminal justice reforms first championed five years earlier by Senator Pat Leahy, Congressman Bill Delahunt and others. But the enactment of legislation designed to strengthen — not weaken — procedural protections for death row inmates was rich in symbolic importance and promise.

Writing in the April 2001 issue of THE CHAMPION (Innocence Protection Act: Death Penalty Reform on the Horizon), I said optimistically: "The criminal justice …

Discrimination In Sentencing On The Basis Of Afrocentric Features, William T. Pizzi, Irene V. Blair, Charles M. Judd

Publications

For a long time, social scientists have worried about possible racial discrimination in sentencing in the United States. With a prison population that exceeds two million inmates of whom approximately 48% are African American, the worry over the fairness of the sentencing process is understandable. This article is not about discrimination between racial categories as such, but about a related form of discrimination, namely, discrimination on the basis of a person's Afro-centric features. Section I of the article describes a line of social science research that shows that a person's Afro-centric features have a strong biasing effect on judgment such …

Difficult Times In Kentucky Corrections—Aftershocks Of A "Tough On Crime" Philosophy, Robert G. Lawson

Law Faculty Scholarly Articles

The objective of this article is to cast some light on corrections system problems brought on by elevated (and possibly unnecessary) levels of incarceration, and especially on problems that trouble the Kentucky corrections system and threaten to undermine the effectiveness of the state's justice system. Part II describes how the country came to embrace sentencing policies and practices capable of producing "a penal system of a severity unmatched in the Western world.” Part III describes Kentucky's embrace of equally harsh sentencing policies and practices and the inmate population explosion that has occurred as a direct result of those policies and …

Discrimination In Sentencing On The Basis Of Afrocentric Features, William T. Pizzi, Irene V. Blair, Charles M. Judd

Michigan Journal of Race and Law

This Article does not challenge the prior research on sentencing discrimination between racial categories that found no significant difference in sentences given to similarly-situated African Americans and Whites. In fact, in the jurisdiction investigated- Florida- no discrimination between African Americans and Whites was found in the sentences imposed on defendants, looking only at racial category differences. Rather, the research suggests that in focusing exclusively on discrimination between racial groups, the research has missed a type of discrimination related to race that is taking place within racial categories: namely, discrimination on the basis of a person's Afrocentric features. By Afrocentric features, …

State Sentencing Policy And New Prison Admissions, Ben Trachtenberg

University of Michigan Journal of Law Reform

As the academy's focus has turned to sentencing in the wake of Blakely v. Washington and United States v. Booker, most commentators have continued their benign neglect of actual sentencing practices as they occur in state courts, not to mention whether and how such policies are effective in achieving the goals of criminal justice.

This Note examines trends in state sentencing policies and prison populations from the perspective of a would-be state reformer hoping to decrease her state's prison budget. Economic pressures, efficiency arguments, and social justice claims have combined to cause some states to desire lower prison populations, …

Against Prediction: Sentencing, Policing, And Punishing In An Actuarial Age, Bernard E. Harcourt

Faculty Scholarship

Actuarial methods – i.e., the use of statistical rather than clinical methods on large datasets of criminal offending rates to determine different levels of offending associated with one or more group traits, in order to (1) predict past, present or future criminal behavior and (2) administer a criminal justice outcome – now permeates the criminal law and its enforcement. With the single exception of racial profiling against African-Americans and Hispanics, most people view the turn to the actuarial as efficient, rational, and wealth-maximizing. The fact is, law enforcement agencies can detect more crime with the same resources if they investigate …

Structuring Sentencing: Apprendi, The Offense Of Conviction, And The Limited Role Of Constitutional Law, Benjamin Priester

Journal Publications

Every year hundreds of thousands of convicted criminal defendants are sentenced for their crimes, often through the implementation of a broad range of laws of relatively recent vintage such as mandatory minimum provisions and regulations of judicial discretion like the Federal Sentencing Guidelines. The policies underlying these sentencing laws are perhaps the most hotly contested issues in all of criminal procedure, with legislative amendments and calls for reform being made every year. Despite their tremendous importance and the constant political activity concerning them, however, the constitutionality of these laws is surprisingly uncertain-the United States Supreme Court has heard an astounding …

The Burdens Of Representing The Accused In An Age Of Harsh Punishment, Abbe Smith

Georgetown Law Faculty Publications and Other Works

The crimes are not any worse than they used to be. They run, as crimes do, from the banal to the barbarous. But punishment seems to have taken on a life of its own.

There are people serving more than twenty years for nonviolent drug offenses. There are people serving more than thirty years for car theft, burglary, and unarmed robbery--crimes for which a harsh sentence used to be ten years. One Oklahoma woman is serving a thirty-five year sentence for "till-tapping"--stealing money out of cash registers--when she was in the throes of a heroin addiction. It is impossible to …

Washington State's Return To Indeterminate Sentencing For Sex Offenses: Correcting Past Sentencing Mistakes And Preventing Future Harm, Jennifer M. Mckinney

Seattle University Law Review

The Washington legislature's return to indeterminate sentencing corrects its original mistake of setting fixed sentences for sex offenders with no supervision after release. Unlike the present civil commitment system, indeterminate sentencing preventatively detains offenders in the criminal system, protects the public, and ensures more control over offenders following their prison terms. Indeterminate sentencing provides a more efficient and effective alternative to the civil commitment process. Section II will briefly discuss the progression of sex offender sentencing from the original parole system to the present changes, and why past structures were instituted and later modified or repealed. Furthermore, Section II will …

Innocence Protection Act: Death Penalty Reform On The Horizon, Ronald Weich

All Faculty Scholarship

The criminal justice pendulum may be swinging back in the direction of fairness. The Innocence Protection Act of 2001, introduced in both the Senate and the House of Representatives earlier this year, promises meaningful reforms in the administration of capital punishment in the United States.

Unlike previous slabs at reform, the Innocence Protection Act (lPA) has a real chance to become law because it commands unusually broad bipartisan support. The Senate bill (S. 486) is sponsored by Democrat Pat Leahy of Vermont and Republican Gordon Smith of Oregon. The House bill (H.R. 912) is sponsored by Democrat Bill Delahunt of …

Fact-Bargaining: An American Phenomenon, William T. Pizzi

Publications

No abstract provided.

Some Worries About Sentencing Guidelines, William T. Pizzi

Publications

No abstract provided.

Dangerousness And Criminal Justice, Franklin E. Zimring, Gordon Hawkins

Michigan Law Review

The first section of this paper surveys some recent writings on the topic of dangerousness for major inconsistencies, which we regard as illuminating the special problem of dangerousness in the jurisprudence of criminal sentencing.

The second section describes the "special problem of dangerousness," for, we believe, the first time. The special problem is the fear that any admission of calculations of dangerousness into sentencing decisions will lead to an overuse of dangerousness, which may be worse than the inefficiencies and hypocrisies we confront when denying that future dangerousness is relevant to decisions about prisons.

The third section attempts to reorganize …

New Perspectives On Prisons And Imprisonment, Michigan Law Review

Michigan Law Review

A Review of New Perspectives on Prisons and Imprisonment by James B. Jacobs

From Pillory To Penitentiary: The Rise Of Criminal Incarceration In Early Massachusetts, Adam J. Hirsch

Michigan Law Review

While the transition from the old forms of criminal sanction to incarceration was perhaps not, as Jeremy Bentham claimed, "one of the most signal improvements that have ever yet been made in our criminal legislation," one does not overstate to call it a signal development in the history of Anglo-American criminal justice - a development, one may add, that still wants adequate examination, much less explanation. This Article attempts to do both for one sample region: Massachusetts. Though the jurisprudential movement from pillory to penitentiary took place throughout the new American republic, as well as much of western Europe, our …

Salvaging Proportionate Prison Sentencing: A Reply To Rummel V. Estelle, Thomas F. Cavalier

University of Michigan Journal of Law Reform

Part I of this Note provides a capsule of the Court's holding in Rummel. Part II argues, contrary to Rummel, that precedential support can be mustered to support eighth amendment review of sentence length. Finally, part 11,1 discusses the continued viability of the proportionality test as a vehicle for assessing challenges to the length of imprisonment, and discounts the concerns voiced in Rummel regarding the difficulty of judicial review of legislative sentencing decisions.

Sentencing, The Dilemma Of Discretion, Jerold H. Israel

Book Chapters

[The following excerpts are taken from Professor Jerold Israel's revision of the late Hazel B. Kerper's Introduction to the Criminal Justice System ( West Publishing Co. 1979), with permission of the author and publisher. Footnotes have been omitted.] As we have seen, judges usually have substantial discretion in sentencing. Most states give them considerable leeway in choosing between probation and imprisonment, in setting the term of imprisonment under either an indeterminate or determinate sentencing structure, in deciding whether a young offender will be given the special benefits of a youthful offender statute, and in determining whether to impose consecutive or …

Crime, Punishment And Responsibility, T. Brian Hogan

Villanova Law Review (1956 - )

No abstract provided.